Sixel: Be careful when seeking confidentiality

Updated 7:56 pm, Wednesday, August 29, 2012

Most companies ask employees who are involved in an internal investigation not to discuss it around the office.

Sometimes the demand for confidentiality is part of the employee handbook and includes penalties for violators. Other times it's a more informal request.

Either way, the word gets passed: Don't talk about the issue, your role in it or who else is getting questioned as the human resources department tries to ferret out the truth, whether it's allegations of sexual harassment, workplace violence or theft.

It would be a good idea, however, for employers to rethink that practice, lest they might run afoul of government regulators.

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The National Labor Relations Board ruled earlier this summer that a hospital in Arizona violated federal labor law by asking one of its employees not to discuss its internal investigation of alleged misconduct.

The technician, whose job was to sterilize hospital equipment, received "coaching" when he refused to follow his supervisor's instructions. The pipes broke and there was no hot water, but the board's decision says the technician refused to utilize the alternative techniques, which included use of hot water from a coffee machine, to sterilize the surgical instruments.

The employee discussed his concerns about patient safety with his co-workers and supervisors.

The board ruled that the hospital's desire to sort out the facts in confidential fashion so as not to tip off others who may have had critical information did not outweigh the federal right of employees to discuss their wages, hours and working conditions.

"The decision sure isn't good for employers," said Michael Muskat, an employment lawyer who represents management with Muskat, Martinez & Mahony in Houston.

Muskat said employers conduct many investigations in which it's important that participants keep information confidential, at least as long as the investigation is going on.

In a typical sexual-harassment investigation, witnesses are interviewed first, and the alleged harasser is interviewed at the end, Muskat said. But if the witnesses discuss what they said, the alleged harasser gets a chance to shape his or her own story.

Employees also may be less likely to come forward if they believe information generated from a complaint won't be kept confidential, Muskat said.

Timely decision

The timing of the case comes at a good time for Houston labor and employment lawyer Patrick Flynn, who plans to use it to represent a worker who was fired for violating confidentiality rules.

The company was conducting an internal investigation into whether the employee, who had been suspended pending the outcome, was involved in a workplace argument when she sent a private email to her co-workers about unfair treatment, Flynn said.

He plans to argue she has the right to talk to her co-workers about working conditions and that her termination was therefore unlawful.

To avoid those kinds of problems, lawyers are scrambling to help their clients shift their approach to internal investigations.

Rather than having a blanket rule requiring confidentiality, Muskat said, employers should make decisions on a case-by-case basis.

A. Kevin Troutman, an employment lawyer at Fisher & Phillips, is telling his clients to evaluate each investigation carefully to determine whether there is an overwhelming reason to ask for confidentiality.

That would include whether the employer believes evidence might be destroyed, witnesses need protection, or a cover-up could be prevented.

Virtual water cooler

It's more important than ever to explain to employees involved in an investigation how the process works from beginning to end, Troutman said.

"It may tamp down the gossip," he said.

Troutman believes the protection of what's known in labor circles as "Section 7 rights" can also be seen in recent rulings involving social media.

The NLRB has ruled that employees can discuss an abusive super­visor, compare their wages or complain about working conditions on electronic bulletin boards such as Facebook or Twitter much like they can around the office water cooler.